dissenting.
I cannot agree that an employee who is totally disabled by a correctable hernia is entitled to no compensation under the Workers’ Compensation Act until after surgery is performed. In my view, the case falls within the general provisions of section 10 of article 8306, Tex.Rev.Civ.Stat. Ann. (Vernon Supp.1979), which provides: “While the incapacity for work resulting from the injury is total, the association shall pay the injured employee a weekly compensation equal to sixty-six and two-thirds per cent (66⅜%) of his average weekly wages
I recognize that this general provision is limited by section 12b, which contains special provisions in cases of hernia. Insofar as pertinent here, this section provides:
In all such cases where liability for compensation exists, the association shall provide competent surgical treatment by radical operation. .
If the employee submits to the operation and the same is successful, ... he shall in addition to the surgical benefit herein provided for be entitled to compensation for twenty-six weeks from the date of the operation. [Emphasis added.]
This section limits the compensation payable “from the date of the operation.” It makes no provision one way or the other for compensation during the period before the operation. No such provision is necessary because of the general provision in section 10. Section 12b does not provide, as does section 12, that the compensation specified therein is “in lieu of all other compensation.” To hold that section 12b limits all weekly compensation in case of a successful hernia operation to twenty-six weekly payments would, in effect, strike the words “from the date of the operation” from the statute and insert instead, “from the date of the injury.” In my opinion, the statute should not be thus judicially amended.
The majority opinion recognizes that no reported decision in Texas has addressed this exact question. The statements quoted in the majority opinion were made in different contexts. Heaviest reliance is placed on the statement in National Mut. Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, 1091 (1940), that in the event of a successful hernia operation, “[c]ompensation for twenty-six weeks is absolutely fixed regardless of the time of actual disability.” This is an accurate interpretation of the statute, but it does not bear on the question of when the twenty-six week period begins. By the plain language of the statute, the period is “twenty-six weeks from the date of the operation.”
Neither does Lowery speak directly on the question of whether the employee is entitled to compensation for actual incapacity before the operation. It does state principles, however, which support my view that incapacity before the operation is governed by the general provisions of section 10. In Lowery, the question was whether an employee who has suffered a hernia should be compensated for a general injury or for a specific injury if the insurance carrier fails to tender an operation. The Supreme Court, affirming the Eastland Court of Civil Appeals, held that the employee was entitled to compensation for a general injury. The court reasoned that *351any injury must be compensated as a general injury unless specific compensation is otherwise provided and that no specific compensation was provided in that situation by section 12b. The court emphasized the duty of the carrier to tender an operation and said that whether the employee was willing to submit to it was immaterial. 148 S.W.2d at 1092. As Judge Funderburk observed in his opinion in Lowery (which was affirmed by the Supreme Court), a hernia is a general injury and compensable under the general provisions of the Act except to the extent that specific compensation is provided by section 12b, but it is not necessary to repeat those general provisions in section 12b because such provisions continue to control, modified only as to the subject matter of the exceptions. National Mut. Casualty Co. v. Lowery, 135 S.W.2d 1044, 1053 (Tex.Civ.App.—Eastland 1939), aff’d, 136 Tex. 188, 148 S.W.2d 1089 (1940). According to this reasoning, it is not necessary for section 12b to provide specifically for compensation for incapacity before the operation because such compensation is provided by the general language of section 10. The only specific compensation provided by section 12b in the event of a successful operation is “twenty-six weeks from the date of the operation.”
The principal argument in support of the judgment below is that to allow recovery would permit an employee with a correctable hernia to increase the amount of his compensation by delaying the surgery. This argument has little weight in view of the provisions of section 12b that the association “shall provide competent surgical treatment” and that it may obtain a medical examination for that purpose. If the employee refuses an operation that would not be more than ordinarily unsafe, his benefits are limited to compensation for one year. Since the present record shows that surgery was successful, but does not show why it was delayed, the only applicable limitation in section 12b is “compensation for twenty-six weeks from the date of the operation.”
For these reasons I would reverse the trial court’s judgment and render judgment in the employee’s favor for the amount of compensation claimed.